Watkins v The Commonwealth of Australia

Supreme Court of NSW|1999-11-17|Before: Gleeson CJ, Badgery-Parker J

New South Wales Supreme Court CITATION : Watkins v The Commonwealth of Australia [1999] NSWSC 1127 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20776/97 HEARING DATE(S) : 17 November 1999 JUDGMENT DATE : 23 November 1999

Stephen Watkins (Plaintiff) PARTIES : The Commonwealth of Australia (Defendant) JUDGMENT OF : Master Harrison

Mr M Joseph SC (Plaintiff) COUNSEL : Mr T J Morahan (Defendant) James Taylor & Co Myrtleford Victoria SOLICITORS : (Plaintiff)

Mr Con Ktenas Australian Government Solicitor CATCHWORDS : Extension of time to commence proceedings; Ss 60G and 60I Limitation Act; Voyager/Melbourne collision ACTS CITED : Limitation Act 1969 (NSW) Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported 7 March 1997) Commonwealth of Australia v Dinnison (1995) 56 FCR 389 Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 CASES CITED : Drayton Coal Board Pty Limited v Drain (NSWCA, Gleeson CJ unreported 22 August 1995) Commonwealth of Australia v McLean (1997) 14 NSWLR 389) Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998) and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995) McLean v The Commonwealth of Australia (1996-97) 41 NSWLR 389 Lynch v The Commonwealth of Australia (NSWSC, unreported 16 October 1998, Master Harrison) DECISION : See para 33

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20776/97 - STEPHEN WATKINS v THE COMMONWEALTH OF AUSTRALIA

JUDGMENT (Extension of time to commence proceedings, Ss 60G and 60I Limitation Act - Voyager/Melbourne collision)

1 MASTER: The plaintiff by notice of motion filed 14 August 1997 seeks an extension of time within which to commence proceedings pursuant to ss 60G and 60I of the Limitation Act 1969 (NSW) (the Act). The plaintiff relied on his affidavit sworn 23 November 1998. The defendant did not rely on any affidavit evidence. The defendant opposes the orders sought. 2 I observed the plaintiff carefully when he gave evidence and was cross-examined. I formed the opinion that he was quietly spoken. I found some of his evidence (which I will refer to later in this judgment) troubling. 3 For the purposes of this application I find the following facts.

(1) The plaintiff was born on 5 February 1946 and is now 53 years of age. He resides in Newcastle.

(2) On 10 March 1963 the plaintiff became a member of the Royal Australia Navy when he was accepted for enlistment as a recruit. He was then aged 17 years. The plaintiff enlisted for an initial period of 12 years. He intended to make the Navy his career for 30 years.

(3) On 10 February 1964 at approximately 2056 hours Eastern Standard time a collision occurred between the aircraft carrier HMAS Melbourne and the destroyer Voyager at sea about 20 miles south east of Jervis Bay. Eighty two men from the Voyager lost their lives in the collision. The plaintiff was a crew member of the aircraft carrier HMAS Melbourne (the Melbourne) as a flight deck handler.

(4) On the night of the collision the plaintiff was on flight deck duties in "Fly 1" (starboard for'ard side) sitting on a safety net. He was on the outer edge of the 3rd panel of the net. The safety net was about 15 feet from the bow. He heard an alarm and felt a violent impact and then there was a loud noise with debris flying everywhere. He felt something hit him in the back, and then, what he now believes to be the Voyager mast tore the safety netting away. He was jolted back and forth, he hit something and fell into the sea. He went under water. The plaintiff was terrified and panicked but he managed to thrash his way to the surface. He found himself struggling to stay on the surface trapped between two large walls being the sides of the vessels. He clung onto some debris which was smooth, and he was unable to climb onto it. As he was clinging onto the debris the walls of the two ships seemed to be coming together and he was terrified of being crushed. The plaintiff remembered swimming towards scramble nets which were over the side of the Melbourne. He grabbed at the scramble net and climbed up the net with survivors from the Voyager. He was exhausted and coughing up water and oil. After a period time he went up to the flight deck to his post. He was completely disorientated and shocked. The plaintiff spoke to his Petty Officer who said "where the fuck have you been". The plaintiff relied that he had been in the water and the Petty Officer told him not to tell anyone "or you'll be charged with desertion or leaving your post". He was then told to get changed and go back to work which he did. He knew that some of his friends has been killed in the collision. This version of the incident is at odds with that described in the questionnaire completed by the plaintiff about two weeks after the collision. In this form he stated that at the time of the collision he was not on duty but reading a paper on 2N (November) Mess. He said that the role he played in the rescue operation was that he went to his emergency station of the flight deck and helped to carry stretchers (Ex 4). He conceded in cross examination that one of these versions was false. The plaintiff's explanation was that the answers in the questionnaire were false because he was warned that if he told anyone he had seen the collision he would be charged with either dereliction of duty or desertion. The version in his affidavit refers to a Petty Officer telling him not to tell anyone what had happened. For the purposes of this application I am willing to accept the plaintiff's explanation for the two inconsistent versions and that the version in his affidavit is the correct one.

(5) On arriving in Sydney the plaintiff was sent on leave. He travelled by train to Temora where he was met by his parents. He was taken to Temora hospital where he stayed for two weeks. He was having difficulty breathing and felt very ill. He did not tell anyone about being in the water as he did not want to think or talk about the awful experience. On 17 March 1964 the plaintiff was discharged from hospital he returned to the Melbourne. Although he still was unwell the plaintiff feared disciplinary action if he did not return to his ship.

(6) The plaintiff did not want to return to the Melbourne as he feared returning to sea. He grew to detest the Navy and the officer that had ruined his life and he wanted to leave the service. He began arguing with his superiors and fellow serviceman. He did not want to think about his experience but could not get the thoughts, fear and horrors out of his mind. When alone he would suddenly break out crying. He began to drink heavily and his smoking increased to three packets per day. He did not smoke at all prior to the collision.

(7) In 1965 the plaintiff was transferred to be an Admirals Orderly. Eventually he became a Navy Writer or clerk. He made two unsuccessful attempts to be discharged from the Navy. On 3 April 1974 the plaintiff was discharged from the Navy.

(8) Between 1977 and 1983 the plaintiff was employed. He was involved in hyperbaric diving on oil rigs and became a hyperbaric systems engineer for which he was handsomely paid. Things were going well at the time, he did not known that he was anxious and depressed. He was sometimes angry but attributed that to his high pressure job. He was able to control his emotions by using alcohol to excess. He had flashbacks and bad dreams about the collision but they were not frequent.

(9) In 1982 the plaintiff was employed at a vineyard. He suffered an injury when a wine barrel fell on his back. The pain in his back subsequently largely resolved itself. In 1991 he under went a spinal fusion and laminectomy.

(10) From 1983 to 1993 the plaintiff undertook tertiary studies. He completed a Bachelor of Arts and a Diploma of Education. He commenced a law degree but was unable to complete it. He is now unable to work at all.

(11) The turning point in the plaintiff's psychiatric condition occurred when he was involved in a motor vehicle accident. On 26 September 1993 he was a passenger in a motor vehicle which was involved in a rear end collision. Since the motor vehicle accident the plaintiff's symptoms have become more pronounced. The plaintiff commenced legal proceedings in relation to the motor vehicle accident but later withdrew them. There are no current proceedings on foot. Since 1995 the nightmares of the collision and flashbacks have increased in number. His depression, anxiety and stress has increased. He suffers more frequently from panic attacks, headaches and sweats. The plaintiff thought that these problems may have been caused by the motor vehicle accident. Prior to the motor vehicle accident he new subconsciously that something was wrong but did not know what it was. He knew he could not get on with people. He did not attribute any of his problems to the collision. The plaintiff had never discussed the Melbourne/Voyager collision with anyone. The reason he did not mention it was initially he thought he would get into trouble and the only way he felt he could handle it was by holding the information in and not telling anyone.

(12) In August 1996 the plaintiff completed an application for a disability pension and listed five injuries, firstly, decreased hearing in the left ear; secondly, breathing problems; thirdly, upper and lower back and muscle problems sustained when he fell in a sponson (walking beside a flight deck) due to a loaded raft from a jet aircraft; fourthly, headaches, stress from pain and fifthly, stress and anxiety from seeing people killed and injured arising from his period of service in the Navy. These problems are not listed in priority order.

(13) On 24 September 1996 he saw Dr Leonard Lambeth a psychiatrist, initially in regard to the motor vehicle accident. When he was being examined by Dr Lambeth and discussing his problems including nightmares regarding the collision, the plaintiff became aware he was suffering from a psychiatric disorder, post traumatic stress disorder (PTSD) and chronic major depression which was or has been caused by the collision between the Melbourne and Voyager. This was the first time he had discussed the collision with anyone. Dr Lambeth says that the plaintiff's PTSD and depression have two causes, namely, the effects of the collision and the effects of the motor vehicle accident in 1993. Dr Lambeth is of the opinion that the plaintiff needs treatment for his psychological disorders.

(14) The plaintiff has attributed his being unable to work, and the loss of several careers the latest being that of becoming a lawyer; the breakdown of two marriages; damaged relationships with his children and friends; and loss of confidence and self esteem, to the collision.

(15) Until the plaintiff read the statement of claim in 1997 he had no knowledge of any acts of negligence of the defendant, and he did not know that the acts of negligence caused his psychiatric damage.

(16) The statement of claim was filed on 14 August 1997.

(17) The notice of motion to extend time was filed on 14 August 1997.

The Law 4 The plaintiff relies s 60G and s 60I of the Limitation Act, 1969. The parties agreed that this is the applicable law. The approach to be adopted in dealing with applications for the extension of limitation periods, is that which has been expounded in recent times in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 and in BHP Steel (AIS) Pty Limited v Giudice (& Ors) (NSWCA, unreported, 7 March 1997). The onus rests with the applicant. 5 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such period as it determines". 6 The relevant provisions of s 60I are as follows: "(1) A court may not make an order under s 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered; or

(ii) was unaware of the nature or extent of personal injury suffered; or

(iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and (b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 7 Thus to gain access to the beneficial provisions of s 60G, the plaintiff must show that: (1) As at 10 February 1970 (the expiration of the relevant limitation period) he was unaware of one or more of the matters identified in s 60I(1)(a)(i), (ii) or (iii);

(2) That he did not become aware of that or those or he ought to have become aware in s 60I(1)(a) (or the last of those matters to become known to him) earlier than 14 August 1994. 8 The practical effect is to require the plaintiff to identify specifically what fact or facts he claims not to have known as at 10 February 1970, which lack of knowledge meets the description in one or more of paragraphs (i), (ii) and (iii) of s 60I(1)(a); and to show (by evidence) the date on which he acquired knowledge thereof (being a date later than 14 August 1994); or to show that that fact was or those facts were still unknown to him on that date. The defendant did not submit that the plaintiff ought to have become aware of the matters listed in paragraphs (i)-(iii) at an earlier date - see s 60I(1)(b). 9 The plaintiff relies on s 60I(1)(a)(i), (ii) and (iii). The plaintiff submitted that he was unaware that he suffered the psychiatric condition of PTSD and major depression. The plaintiff also submitted that he did not know of the connection between the personal injury and the defendant's acts and omissions until 1997. The defendant did not make any submissions in relation to s 60I(1)(i)-(iii). (i) Whether the plaintiff has proved that "he did not know that a personal injury had been suffered " 10 The plaintiff knew that he had difficulty breathing after the collision when he became an in-patient at Temora hospital for two weeks. At the expiration of the limitation period he knew that he was drinking heavily, smoking and gambling. He knew he was anxious, angry, frightened, had lost confidence and was argumentative. He did not known that he suffered from a psychiatric illness. 11 In September 1996 the plaintiff was told by a psychiatrist that he suffered from PTSD and major depression materially caused by the collision. As was stated by the Full Federal Court in Commonwealth of Australia v Dinnison (1995) 56 FCR 389 (per Gummow and Cooper JJ at p 402) it is important to appreciate that the personal injury that the plaintiff suffered was a psychiatric illness. I accept that the plaintiff was not aware until September 1996 that he suffered a personal injury. The plaintiff has passed through the s 60I(1)(a)(i) gateway. (ii) Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered " 12 The test of knowledge posed by s 60I(1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I(1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10). Harris is a case of a disease of gradual onset. 13 The nature or extent of the injury which the plaintiff has sustained is to be determined as an objective fact as at the date of the hearing of the application. A plaintiff may be held to have been aware of the nature or extent of his injury within the relevant period if during that period he was aware of the effect which the injury was then having upon him and of its likely future course, even though he may have been unaware of the precise pathology or medical diagnosis. In particular if the applicant was aware that the injury would deteriorate, he or she may be aware of the extent of the injury for the purpose of s 60I (1)(a)(ii) even though the injury developed particular consequences that the applicant did not precisely foresee. As long as the consequences are of a kind that an applicant expects, the applicant will be aware of the extent of the injury (Harris pp 13 and 14). I have referred to the state of the plaintiff's knowledge prior to the limitation period under the heading s 60I (1)(a)(i). 14 For the reasons given under s 60I(1)(a)(i) it is my view that the plaintiff did not know the nature or extent of his personal injury until September 1996 when he knew that he had a diagnosable psychiatric illness. This falls within the period stipulated by s 60I(1)(b). It is my view that the plaintiff has passed through the 60I(1)(a)(ii) gateway.

(iii) Whether the plaintiff was "unaware of the connection between personal injury and the defendant's act or omission " 15 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. 16 The plaintiff submitted that it was not until he read the statement of claim in 1997 and specifically the particulars of negligence that he was aware of the factors that contributed to the collision and that those factors represented acts of negligence by the defendant its servants or agents. 17 The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relied to found the cause of action referred to in s 60G. Those acts or omissions, will be found in the plaintiff's particulars of negligence. - Drayton Coal Board Pty Limited v Drain NSWCA, Gleeson CJ, unreported 22 August 1995). 18 In paragraph 5(a) to (p) of the statement of claim the plaintiff gives particulars of negligence as against the officers of the Voyager. They are as follows: (a) Causing Voyager to make a turn beyond a course of 020 degrees when not ordered to do so; (b) Failing to correctly carry out orders transmitted from Melbourne to Voyager; (c) Failing to correctly receive orders transmitted from Melbourne to Voyager; (d) Causing or permitting Voyager to take up a course of other than that indicated by signals from Melbourne; (e) Failing to correctly transmit as orders, signals received from Melbourne; (f) Causing or permitting Voyager to proceed on a course across and close to the bows of Melbourne; (g) Causing or permitting Voyager to proceed upon a course and at a speed taking her across and close to the bows of Melbourne; (h) Failing to alter the course or speed of Voyager in time to avoid a collision; (i) Failing to maintain a constant and efficient watch; (j) Failing to observe in sufficient time or at all that if the course and speed of Voyager and Melbourne remained constant a collision was likely to occur; (k) Failing to warn Melbourne that Voyager was proceeding upon a course across and close to the bows of Melbourne; (l) Failing to warn Melbourne that a collision was imminent; (m) Failing to give right of way to Melbourne; (n) Failing to ensure that Voyager and its equipment were in a seaworthy and safe condition; (o) Failing to ensure that all persons on Voyager were properly trained and prepared for the eventuality of a collision or other catastrophe; (p) Failing to maintain any or any adequate lookout. 19 Similarly, there are particulars of negligence given in relation to the officers of the Melbourne and further particulars of negligence of other officers and servants of the Commonwealth of Australia. 20 I accept that it was not until 1997 when the plaintiff read the statement of claim that he became aware of the connection between the personal injury and the defendant's acts and omissions. This falls within the time period stipulated by s 60I(1)(b). The plaintiff has passed through the s 60I(1)(a)(iii) gateway. 21 As the plaintiff has passed through all three s 60I(1)(a) gateways I turn to consider whether it is just and reasonable to extend the limitation period.

Just and reasonable 22 I turn now to consider whether it is just and reasonable to extend the limitation period. The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Taylor. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in Giudice and in Commonwealth of Australia v McLean (1997) 14 NSWLR p 389. 23 Firstly, I turn to consider whether the plaintiff has a real case to advance. In relation to s 60G, the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. The need for the court to decide that it is just and reasonable to extend the limitation period must focus attention on the question whether there is indeed evidence to establish the plaintiff's cause of action. It would rarely be possible to say that it was just and reasonable to subject the defendant to litigation otherwise statute barred if it did not appear that there was evidence available to the plaintiff to establish his cause of action. (See Szerdahelyi v Bailey (NSWSC, unreported Badgery-Parker J, 1 May 1997); Ortado v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Lewis v Bailey (NSWSC, unreported, Badgery-Parker J, 1 May 1997); Council of the City of Sydney v Zegarac (NSWCA, unreported 26 February 1998) and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (NSWCA, unreported 24 April 1998) and Fitzgerald v Bankstown City Council (NSWCA, unreported 6 November 1995). 24 The defendant submitted that even if the plaintiff had a real cause of action to advance it was so trivial that it was not just and reasonable to extend the limitation period. The plaintiff was employed by the defendant. The defendant as employer of the plaintiff had a duty of care to the plaintiff. The foreseeability of the plaintiff's damage will be in issue at the trial. It is the plaintiff's contention that as a result of his experience of being on board the Melbourne when it was hit by the Voyager he suffered PTSD and major depression. Since 1993 the plaintiff has suffered a loss of earning capacity. The plaintiff still has 12 years to go until he reaches retirement age. The case is not without its complexities as there is an overlap between the damages suffered in the motor vehicle accident and the collision. However, it it my view that after 1995 the plaintiff's psychiatric condition worsened markedly and he may be unable to gain employment in the future. It can be argued that the collision materially contributed to his injuries. The case is not a trivial one and the plaintiff has a real case to advance. 25 I tun now to the effects of delay and what was said in Taylor. 26 In Zegarac the Court of Appeal considered the effect of Taylor in relation to the extension of the limitation period of a case which falls into subdivision 2 of the Limitation Act 1969 - ss 60C and 60E. 27 Mason P analysed the views of the Judges of the High Court in Taylor's case. The President quoted the passage by McHugh J which begins "Legislatures enact" and was of the view that Dawson J agreed with McHugh J. Mason P concluded that it could therefore be seen that Dawson and McHugh JJ appeared to indicate that it is mandatory that the applicant negate "significant prejudice" before the discretion could be exercised in his or her favour. 28 Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms. "The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent." 29 Mason P perceived that there may be a distinction between the notion of "significant prejudice" and the notion that delay makes "the chances of a fair trial unlikely". In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made "the chances of a fair trial unlikely" or whether the defendant would suffer "significant prejudice". 30 The defendant has admitted the collision but denied it was negligent. I accept that with the passing of 35 years, there is the real possibility some witnesses may not be available to give evidence at the trial. It can also be expected that memories will have faded with the effluxion of time and some witnesses may no longer be alive or able to be located. Indisputably there is presumptive prejudice. However the defendant did not furnish evidence to demonstrate that it suffers from actual prejudice. 31 Generally speaking, the lengthy delay may well confront the defendant with a difficult task in investigating a claim for damages. There are Navy records showing that at the time that the plaintiff joined the Navy he was in good physical and psychological health. The events surrounding the collision are well known and there is documentary evidence available - see McLean v The Commonwealth of Australia (1996-97) 41 NSWLR 389 and Lynch v The Commonwealth of Australia (NSWSC, unreported 16 October 1998, Master Harrison). There are also decisions in relation to extension of time of the limitation period for Voyager/Melbourne claims by Master Malpass. The plaintiff's service and medical records throughout his service in the Navy are available. Records from Temora hospital are available. The plaintiff's general practitioner who completed his pension form in 1996 is available to give evidence. However the two versions of where the plaintiff was when the collision occurred mean that the defendant will have to locate witnesses if they wish to challenge the plaintiff's evidence. Each member on board the Melbourne and Voyager at the time of the collision completed the questionnaire so there will still be witnesses who can give evidence. 32 After I have taken into account all of these matters, the exercise of discretion is finely balanced. After much reflection I am not satisfied that the "chances of the defendant obtaining a fair trial is unlikely" nor am I satisfied that the defendant will suffer "significant prejudice". The plaintiff has discharged his onus and satisfied me that it is just and reasonable for an order to be made that the limitation period be extended. The appropriate order for costs is that costs be costs in the cause. 33 The orders I make are:

(1) The plaintiff is granted an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 10 February 1964 up to and including 14 August 1997.

(2) Costs are costs in the cause. **********

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